From Law to Limbo: The Human Consequences of Third-Country Deportations

By Madelyn Evans, J.D. Candidate, NYU Law Class of 2027

I. Understanding Third-Country Deportations

In the past year, migrants striving to build a new life in the United States have more frequently found their journey ending not on American soil, but in detention centers in countries such as Eswatini and South Sudan—facilities marked by overcrowding, minimal legal protections, and severe human rights consequences. The United States’ increasing practice of third-country deportations puts migrants in overseas detention systems where their basic rights are often inadequately safeguarded. This policy raises serious domestic due process concerns and implicates international human rights obligations. Without meaningful policy reforms and sustained oversight, third-country deportations risk leaving migrants in legal and humanitarian limbo.

Since taking office, the Trump Administration has significantly escalated the use of third-country deportations in an unprecedented expansion of a rarely-used provision in U.S. immigration law. Third-country deportations refer to a section of the Immigration and Nationality Act (INA) that allows the Department of Homeland Security (DHS) to deport migrants to countries other than their country of origin. Nearly a dozen countries have agreed to accept U.S. deportees, often in exchange for financial incentives or under diplomatic pressure. Such deportations place vulnerable migrants and refugees at risk, prompting backlash over this strategy’s potential violations of international human rights law.

Amid its mass deportation strategy, the Trump Administration has encountered significant obstacles with “resources, detention capacity, and manpower.” For example, in order to staff immigration enforcement duties, the administration reassigned agents from at least five federal agencies outside of ICE. Furthermore, due process safeguards embedded in the Immigration Nationality Act (INA) present additional obstacles to Trump’s mass deportation agenda. According to the American Immigration Council, the INA requires that an individual receive an immigration court hearing and a final order of removal before deportation. However, the U.S. immigration system has nearly 3.7 million cases in its backlog, rendering the processing of hundreds of thousands of additional deportation cases untenable. In this context, the Administration has increasingly relied on third-country deportations as a workaround to these legal and logistical barriers.

During immigration proceedings in the United States, judges designate a country to which the migrant is supposed to be deported—most often their country of origin, or alternatively, where they were born or have residence. However, the applicable statutory provision of the INA, 8 U.S. Code § 1231(b)(1)(C)(iv), explicitly permits removal by DHS to any third country “[willing] to accept the [migrant] if removal to the designated country is ‘impracticable, inadvisable, or impossible.’” This country is not required to be one where a migrant was born or has citizenship, nationality, or residence. The Trump Administration has used this provision as the legal basis to deport migrants to countries where they were neither born, have residence, nor have any meaningful ties.

II. Assessing the Legality of Third-Country Deportations

Prior to the second Trump Administration, third-country removals were rare. Before 2019, the only formal “safe third country” agreement the United States had was with Canada, and it was applied on a limited basis. The authority the U.S. government has to remove a person with a final removal order to a third country was intended as a way to allow the deported person to relocate their life to a new country where their safety is not at risk. Under the current Administration, however, the use of third-country deportations has resulted in the expulsion of asylum-seekers who have not had the chance to sufficiently plead their cases in immigration court in the United States, and a “one-way ticket to indefinite detention or high-risk circumstances on foreign soil.”

The specific legality of third-country deportations going forward without adequate safeguards or asylum protections in place is currently being challenged in U.S. courts. In April, 2025, Judge Brian Murphy of the U.S. District Court Judge for the District of Massachusetts certified a class of noncitizens and issued an injunction barring the federal government from deporting noncitizens to third countries without due process. Judge Murphy assessed potential claims under the UN Convention against Torture, writing that his order prevents the irreparable harm of “noncitizens being sent to countries where they might face persecution, torture, or death without having the chance to challenge their removal in court.” Failing to give migrants a “meaningful opportunity” to raise fears of deportation violates their constitutional due process rights.

However, on June 23, 2025, the U.S. Supreme Court issued a decision staying the injunction pending appeal in the First Circuit, thus allowing the Department of Homeland Security to, for now, resume third-country deportations. Justices Sotomayor, Kagan, and Jackson, in their dissent, wrote, “[T]he Government claims it may remove noncitizens in the space of 15 minutes…Such noncitizens cannot practicably file individual lawsuits to vindicate their due process rights. After all, they will not know of the need to file a claim until they are on a bus or plane out of the country. Nor will their counsel, whom the Government refuses to notify.” Even with the injunction lifted, serious concerns persist as to whether the expedited removal of migrants to third countries—often without notice or meaningful access to legal counsel—violates fundamental due process rights and international human rights obligations.

III. The Human Rights Implications of Third-Country Deportations

The United States’ use of third country deportations under the Trump Administration has alarming and far-reaching consequences on the status of human rights. One example is the Administration’s deportation of migrants to the Southern African nation of Eswatini, with reported transfers taking place as recently as October 2025. In July 2025, a government spokesperson from Eswatini reported that five men deported from the United States were being held in solitary confinement at undisclosed correctional facilities, isolated from other inmates for an undetermined period. The Eswatini government said that the men are considered to be “in transit” and will eventually be transferred to their countries of origin, although it remains unclear how long that process will take. Since October, ten more migrants have been deported from the U.S. to Eswatini, prompting further protests by local civic groups and a separate court case in Eswatini against authorities over the detention of the men. The Kingdom of Eswatini, formerly known as Swaziland, is one of the few absolute monarchies existing today and is ruled by King Mswati III. According to the Southern Africa Litigation Centre, the lack of parliamentary accountability in Eswatini means that there are limited checks on the powers of the executive, and it increases the likelihood that key legislative decisions, such as those relating to human rights matters, are made with little debate. The country also faces severe issues of poverty, unemployment, high crime rates, and congested prisons. Organizations such as the Southern African Litigation Centre have reported that Eswatini’s human rights record is complicated by the country’s constrained media environment, harassment of human rights defenders and media practitioners, and laws that violate the rights of freedom of expression. The government has also violently suppressed pro-democracy protests and weaponized the judicial system by imprisoning pro-democracy activists.

The Trump Administration’s deal with Eswatini, a small nation entirely encircled by South Africa, has raised widespread concerns and outrage. South Africa has also expressed serious security concerns over the deportation of convicted criminals, particularly regarding the profiles of these individuals and the potential adverse impact on South Africa’s national security and immigration policy. Compounding the situation, deportees—hailing from Cuba, Jamaica, Laos, Yemen, and Vietnam—have been denied access to legal representation while reportedly being held in Eswatini’s main maximum-security prison, according to AP News. This denial of access to legal assistance raises serious concerns under domestic and international law, including Article 9 of the International Covenant on Civil and Political Rights, which prohibits arbitrary detention and guarantees the right to challenge the lawfulness of detention,^[1] and may expose Eswatini to legal consequences for prolonged or unreviewable immigration detention.

Another alarming example is South Sudan. In July 2025, the U.S. deported eight men there, none of whom were South Sudanese citizens. These removals followed months of diplomatic pressure. After the United States revoked visas for South Sudanese passport holders and restricted new arrivals in April due to South Sudan’s refusal to accept its nationals back, negotiations resumed. South Sudan ultimately agreed to accept eight deportees of Cuban, Laotian, Mexican, Burmese, and Vietnamese origin as a gesture of goodwill to repair relations. As an extra incentive for South Sudan to cooperate with U.S. demands, the Trump Administration extended Temporary Protected Status (TPS) for South Sudanese immigrants for six months—a move that directly conflicts with its broader efforts to curtail TPS and other humanitarian protections. Altogether, these actions illustrate how third-country deportations risk transforming immigration enforcement into a form of geopolitical bargaining, with human rights and legal protections subordinated to diplomatic leverage. South Sudan is a war-torn country whose human rights record the U.S. Department of State has repeatedly criticized. According to the State Department’s 2024 Country Reports on Human Rights Practices: South Sudan, the most serious violations included credible reports of disappearances, arbitrary or unlawful killings, torture, arbitrary arrest or detention, and severe restrictions on freedom of expression and media freedom. The report also emphasizes that, despite isolated prosecutions for human rights abuses, the South Sudanese government failed to take credible steps or action to identify and punish officials who committed such violations. The status of the eight individuals deported from the United States to South Sudan is no longer known.

The Trump Administration’s increasing use of third-country deportations also has implications for the treatment of foreign nationals once transferred abroad. In regions such as the Southern African Development Community (SADC) region, the treatment of foreign nationals in detention facilities was already a pressing human rights concern, independent of recent U.S. third-country deportation practices. SADC is composed of sixteen member states: Angola, Botswana, Comoros, Democratic Republic of Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, United Republic of Tanzania, Zambia and Zimbabwe. Migrants, refugees, and asylum seekers—many of whom flee conflict, poverty, or political instability—are frequently detained in foreign prisons or held in pre-trial detention for extended periods. In countries such as South Africa, long an important destination for migrants and refugees, there has been an increasing use of criminal procedures in enforcing migration laws, which ultimately results in higher detainment rates. Once detained, foreign nationals routinely face systemic barriers including prolonged detention, lack of access to legal representation, language obstacles, inadequate consular notification, and discriminatory treatment. These conditions violate international and regional standards, including the African Charter on Human and Peoples’ Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

IV. The Laws Governing the Treatment of Foreign Nationals Versus the Reality

While some SADC countries have laws in place outlining the treatment of foreign nationals, in practice very few of these provisions are followed. For example, the South African Immigration Act No.13 of 2002 states that foreigners “shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands.” However, foreign nationals in prisons in South Africa and across the region face significant language barriers that hinder their access to justice, healthcare, and basic services. These barriers can lead to misunderstandings, feelings of isolation, and potential breaches of human rights. Studies show that the lack of adequate interpretation and translation services in prisons negatively impacts foreign inmates’ ability to understand their rights, participate in legal proceedings, and access necessary medical care. In many SADC countries, it has been evident that policymakers have failed to fully account for the linguistic diversity of the population and the limited language resources available within prison systems.

Another country which provides stipulations for the treatment of immigrants in its Constitution is Namibia. The 1990 Constitution of Namibia states that “No persons who have been arrested and held in custody as illegal immigrants shall be denied the right to consult confidentially legal practitioners of their choice.” In practice, however, Namibia has been reported to frequently detain migrants entering the country irregularly, and many lack any access to legal aid. In Malawi, its Immigration Act includes provisions for the detention of suspected prohibited immigrants, stipulating that, “Any person suspected of being a prohibited immigrant may be detained by an immigration officer for such reasonable period, not exceeding fourteen days, as may be required for the purpose of making enquiries as to such person’s identity or antecedents.” Nevertheless, detention often far exceeds this statutory limit.

V. Conclusion

Ultimately, the growing use of third-country deportations by the United States threatens to place migrants in detention systems where their fundamental rights are inadequately protected. The Trump Administration must be held accountable for not only the domestic due process concerns its strategy raises, but also its international legal obligations to prevent refoulement and ensure the humane treatment of individuals it removes. Partner countries, including those in the African region, likewise bear responsibility for upholding the rights and dignity of foreign nationals within their custody. Implementing meaningful policy reforms to ensure the humane treatment of foreign nationals in prisons is not just a moral imperative but a legal obligation under international and regional human rights frameworks. Without robust policy reforms and sustained judicial oversight, third-country deportations will continue to exact a heavy human toll, leaving migrants in limbo in foreign prisons, in foreign countries.

^[1] While the ICCPR’s explicit right to counsel applies in criminal proceedings, international human rights bodies have emphasized that access to legal assistance is a critical safeguard against arbitrary detention in immigration contexts.